Linda Greenhouse writes:
Whatever its ultimate fate, the decision has succeeded quite well in shifting the burden of the argument, removing the presumption of constitutionality in which federal laws ordinarily come clothed and that the Obama administration now has to regain, as not only the appeals process, but the public conversation as well, moves forward.
Matt Welch responds:
Lest you think Greenhouse's lament covers only economic regulations, the fulcrum of her analysis is the Supreme Court's 7-2 decision in U.S. v. Comstock asserting the federal government's right under the "necessary and proper" clause of the Constitution to imprison "sexually dangerous prisoners" even after their sentences have been served. Like Kelo v. New London and Raich v. Gonzales, the Commerce Clause fight over ObamaCare is proving to be a clarifying moment for liberal deference to state power.
I don't share Greenhouse's view that courts should adopt a "presumption of constitutionality" when hearing cases, but it's a pretty straightforward expression of judicial conservatism: Activism is bad, courts should defer to the "political branches." But it just strikes me as a weird example for Welch to single out as emblematic of liberals given that Greenhouse is just actually reiterating what conservatives pretend to believe. Based on the fascinating Damon Root piece Welch links to, this sounds a lot more like the ideological divide between conservatives and libertarians, the latter being less interested in "restraint." But of course conservatives are libertarians of convenience; preaching restraint only toward the laws they like and uh, "engagement" toward those that they don't.
Liberals don't have a commonly shared view of the Constitution in the way that conservatives or even libertarians do right now -- they're just muddling through, often flirting with the judicial conservatism of judges who would have been considered moderate Republicans before those went extinct. But many of the most prominent liberal legal voices have a philosophy on activism that is similar to libertarians in its disdain for "deference." Pam Karlan for example:
The question is not whether federal judges should strike down popularly enacted policies, but when. This question has no mechanical answer. So let's drop the vacuous accusations of activism and instead argue about the right answers to constitutional questions, and the real meaning of fidelity to the most important constitutional principles: liberty, equality, and opportunity for all.
I'd say most liberals would line up with Karlan rather than Greenhouse and would ultimately support the ACA as constitutional on the merits not out of an ideological belief in judicial restraint. That's not inconsistent with pointing out that conservatives publicly disdainful of activism are now resting all their hopes for overturning the ACA on it.